Kvitsiniya N.V., Osadchenko E.O. Trademark Right: The Transfer Regulation and Gaps in the Current Legislation
DOI: https://doi.org/10.15688/lc.jvolsu.2023.2.13
Natalya V. Kvitsiniya, Candidate of Sciences (Jurisprudence), Associate Professor, Department of Civil and Private International Law (Base Department of the Southern Scientific Centre of the Russian Academy of Sciences), Volgograd State University, Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0000-0002-6538-9796 Elvira O. Osadchenko, Candidate of Sciences (Jurisprudence), Associate Professor, Department of Civil and Private International Law (Base Department of the Southern Scientific Centre of the Russian Academy of Sciences), Volgograd State University, Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0000-0002-7709-4821
Introduction. The legislator in paragraph 1 of Art. 1490 of the Civil Code of the Russian Federation with the expression “as well as other agreements” (that is, any that are concluded in writing) has allowed all elements of the ownership of a trademark to be transferred without a license agreement. Currently, judicial practice at the level of the Supreme Court of the Russian Federation allows the transfer of the exclusive trademark right and its disposal on receipt. The Supreme Court of the Russian Federation has actually equated the conclusion of a license agreement with a receipt. The paper examines the theoretical provisions of the concept of a trademark in civil law circulation. Particular attention is paid to the existing methods of transferring a trademark. The court practice on the transfer of a trademark for use under a license agreement is analyzed, and the need for introducing legislative changes to eliminate the identified legal spaces is substantiated. The relevance of the chosen topic is due, firstly, to the dynamic development of market relations and, secondly, to the intensive digitization of procedures in many areas of legal relations. An important factor confirming the relevance of the topic is the dishonesty of others in claiming an established trademark. The identification of current trends in judicial practice and the analysis of the development of the legislation on the use of a trademark have constituted the purpose of this study. Methods. When preparing the paper, the general and special methods of scientific knowledge were used (the method of a system approach, analysis, and synthesis; the system-functional and axiomatic methods). Results. The study has analyzed the acts of the Supreme Court of the Russian Federation and the lower courts (Order of April 5, 2022, No. 305-ES21-23755; Decree of the Arbitration Court of the Volga-Vyatka District of March 31, 2021, in case No. A11-2223/2017). It is substantiated that the analysis of these acts allows for the conclusion that there are negative consequences of a broad interpretation of the norms of civil law and, as a result, the gradual introduction of precedent as a source of law in Russia. Conclusions. The authors justified the need to amend the current legislation (Clause 1 of Article 1235 of the Civil Code of the Russian Federation and Clause 1 of Article 1490 of the Civil Code of the Russian Federation). The authors have argued that the right to use a trademark cannot be transferred by a simple receipt but only by concluding a license agreement.
Key words: trademark, judicial practice, license agreement, methods of trademark transfer, Supreme Court of the Russian Federation, judicial board for economic disputes, legal gap.
Citation. Kvitsiniya N.V., Osadchenko E.O. Trademark Right: The Transfer Regulation and Gaps in the Current Legislation. Legal Concept = Pravovaya paradigma, 2023, vol. 22, no. 2, pp. 102-108. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2023.2.13
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